Many Americans see the Internet as a lawless frontier, a haven for criminals and
sexual deviants that use anonymity to commit crimes without fear of retribution.
The dynamic nature of the Internet produces a number of unique regulatory challenges
that test the patience and ingenuity of legislators and law enforcement agents.
Regulation of sexual content on the Internet has always been a controversial issue.
The recent increase in parental concern about the nature and accessibility of
unwholesome content compelled the federal government to evaluate new options and
place a stronger emphasis on regulation of this perceived threat.
Last month, the FBI began implementation of an anti-obscenity
initiative designed to crack down on those that produce and distribute
deviant pornography. According to FBI headquarters, the war against smut is
"one of the top priorities" of Attorney General Gonazalez and FBI
Director Robert Meuller. Although law enforcement agencies have always been
aggressive when it comes to prosecuting exploitative child pornographers, this
new initiative is unique in that it targets Internet pornography featuring consenting
According to the Washington Post, the new anti-obscenity squad, which
will consist of eight agents, a supervisor, and assorted staff, will be responsible
for accumulating evidence to use against those that produce and distribute criminally
obscene content. So what constitutes criminal obscenity, and how does
that relate to our first amendment rights? Under current American law, the Miller
test is the means by which the courts determine if content is obscene and consequently
not eligible for first amendment protection. The Miller test evaluates the literary,
artistic, political, and scientific value of content as well as contemporary
community standards. If content or expression is well within accepted community
standards or it has intrinsic value, it does not constitute criminal obscenity.
According to an electronic memo from FBI headquarters, established legal precedents
indicate that conviction is most likely in cases where the content "includes
bestiality, urination, defecation, as well as sadistic and masochistic behavior."
Despite a growing deficit and considerable budget concerns, the federal government
will soon be paying FBI agents to surf the web in search of questionable content,
a job that many Arsians would gladly do for free. An even greater irony is that,
only one day after the FBI announcement, House Majority leader Tom DeLay declared
victory in the war against wasteful government spending.
In the past, government attempts to regulate Internet pornography have been
met with tremendous resistance from civil liberties advocates. Many laws proposed
to control Internet pornography are patently misguided and inherently destructive.
I'm sure many of you remember the short lived Communications
Decency Act of 1996, which blatantly violated first amendment rights and
established vague provisions that could easily have extinguished free speech
on the Internet. Some critics of the new anti-obscenity initiative argue that
it could lead to greater government censorship, and others are concerned about
costs and priorities. An article
in the Washington Post featured a few cynical responses from law enforcement
"I guess this means we've won the war on terror," said one exasperated
FBI agent, speaking on the condition of anonymity because poking fun at headquarters
is not regarded as career-enhancing. "We must not need any more resources
There are also a number of people that strongly support this new initiative.
According to the same Washington Post article, the Family Research Council affirmed
"a growing sense of confidence in our new attorney general" in response
to the heightened law enforcement emphasis on Internet smut. Concerned parents
argue that our society has become increasingly tolerant of pornography and socially
questionable material, and many of them blame the Internet for the degradation
of traditional American values. Conservative columnist Benjamin Shapiro argues
in favor of the initiative in a recent article,
and he comments on the concerns of those that oppose the initiative:
They find the anti-pornography crowd disturbing because they believe that
policing pornography violates fundamental rights. This has become the dominant
view in our society: As long as what I do doesn't harm you personally, I have
a right to do it. It's a silly view and a view rejected by law enforcement policies
all over the country.
Mr. Shapiro's dismissal of modern deontological ethics and the categorical
imperative doesn't impress me much. Last time I checked, our legal system was
supposed to protect the rights of morally autonomous individuals. As a Libertarian,
I tend to be skeptical of government regulation. Internet pornography is an
enormous, profitable industry (which happens to provide the government with
massive amounts of tax money) and I strongly support the rights of those who
choose to engage in production, distribution, and consumption of pornography
that does not inherently violate the rights of others. In principle, I also
value the rights of those who do not wish to be exposed to such content, but
I have very little faith in the government's capacity to effectively shield
the innocent without violating the rights of consenting consumers. I think that
this latest measure is an attempt to appease those concerned without incurring
major expenses. When it comes right down to it, this solution is less expensive
and less ominous than other potential solutions, but I am concerned by the fact
that the Attorney General considers this a high priority.
The absurdity of the situation is accentuated when you study previous situations
where the government has attempted to censor content on the basis of criminal
obscenity. A commonly cited example is Allen Ginsberg's poem Howl,
the pinnacle of beat poetry and arguably the defining composition of an entire
generation. In 1957, the government attempted to prevent the publication of
Howl and pressed charges against Ginsberg and poet laureate Lawrence
Ferlinghetti, claiming that the duo was guilty of criminal obscenity for distributing
a poem that contained drug references and overt homosexual themes. Fortunately,
the American Civil Liberties Union intervened on behalf of the poets, and today,
Ginsberg's masterpiece is read in classrooms all across America. I question
the validity of a legal standard that requires the government to make determinations
about what constitutes art, and for that reason I question the legal validity
of anti-obscenity laws and the Miller test.
Is this a timely and legitimate solution to a serious problem, or is it a costly
and wasteful attempt to appease concerned parents and religious fundamentalists?
Will it make the Internet a safer and more wholesome learning environment for
children, or will it stifle free speech and civil liberties? More to the point,
how many of you will be polishing up the old resume and applying for jobs on
the porn squad?